Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 CR 42 - Frank J. McGarr, Judge.
Fairchild, Chief Judge, Pell, and Sprecher, Circuit Judges.
This is an appeal from the denial of appellant Hedgeman's motion for a new trial pursuant to Rule 33, F.R.Crim.P., based upon newly discovered evidence. Hedgeman had been tried on sixteen counts: one count of conspiracy (18 U.S.C. § 286), seven counts of false claims (18 U.S.C. § 287), four counts of false statements (18 U.S.C. § 1010), and four counts of aiding and abetting false statements (18 U.S.C. §§ 1010 and 2(a)). He was acquitted on two of the substantive counts and was convicted on three counts of § 287, four counts of § 1010, and four counts of §§ 1010 and 2(a). The conspiracy count resulted in a mistrial and the Government dismissed two substantive counts during the course of the trial. Ultimately this court affirmed the convictions as well as affirming the district court's denial of an alternative motion to vacate sentence or grant a new trial, which motion included a Brady issue.*fn1
The present appeal also in essence claims a Brady violation with principal reliance upon the subsequent United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), upon which the Government also relies. Upon first blush, it might appear that the claim had arguable merit; however, from our further examination we are convinced that the prosecutorial suppression contention structured essentially on inference and considerable conjecture aided by hindsight fails to present a proper case for our remanding for a new trial.
The charges against Hedgeman grew out of the performance of his duties as an Area Management Broker for the Federal Housing Administration. Among his duties he was supposed to solicit bids, to make contracts, and to process claims for services in connection with rehabilitation of properties which had been acquired by foreclosure of insured mortgages. Testimony clearly demonstrated that Hedgeman had signed and passed on claims for work that was not performed; that he passed on bids in the names of persons who were not bona fide contractors; and that he filled out and passed on bids that otherwise were not bona fide bids. Proof on one of the counts on which Hedgeman was convicted, Count 17, demonstrated that his original inspection of the property revealed that no garage existed at the site, yet he certified that all repair specifications were met, including the painting of the non-existent garage.
The present appeal centers on the testimony of Pearson, a contractor, who testified that he had regularly paid kickbacks to Hedgeman on contracts that he had received. To support his testimony, the Government introduced through him nine of his work sheets on his contracts, each of which had notations which he said were made at the pertinent times and represented his records of how much he had paid Hedgeman. Pearson, an unindicted co-conspirator, was pursued diligently via the impeachment route and the information thus developed was utilized in oral argument to the jury. It was brought out that he had engaged in illegal acts such as destroying records to impede an IRS investigation and using fictitious names on bids. It was developed that Pearson had agreed at a meeting with Government attorneys while the present trial was in progress to give testimony and that he would not be prosecuted. With regard to the documents in question, the defense counsel examined Pearson on each count, pointing out differences in the color of the ink and possible alterations of the figures. The Government, in our opinion, fairly appraises the tenor of the extensive cross-examination relating to the payment notations as raising the inference that Pearson had recently fabricated these notations. At the meeting at which he had agreed to testify, Pearson brought the exhibits which had been in his possession prior thereto. Before bringing them to the Government, according to Pearson's testimony, he had not had any examinations or tests made of them to determine the age of the writing nor to his knowledge had the Government done so.
The focus now turns to one Purtell, an expert document examiner. Pearson's cross-examination occurred on January 23, 1974. Sometime that day defense counsel called Purtell and was told by him that age of ink determinations could not be made of writings done in ballpoint or fibrepoint pens. As a result of this conversation defense counsel apparently concluded that it was futile to bring the documents over to Purtell for examination. The following day Government counsel asked Purtell to meet with them after the conclusion of the day's trial. When he did so, Government counsel learned from him that he had talked to defense counsel the previous day but that he had not been retained.
Purtell then examined one of the documents, making both a visual and microscopic examination. He then asked counsel if any other document examiner had looked at the document. Counsel replied in the negative and the question was twice more repeated and twice more denied. Purtell pointed out three spots on the document being examined which he said were the result of "tests for ink" made by a solvent. In response to a question from Government counsel, Purtell said the spots could not have been made by coffee because they were exactly on a line of writing. In his deposition, Purtell said he didn't exactly say that he was convinced that some expert or analyst had previously examined the document but he thought he "made inferences that when somebody was testing the ink, it had to be a document examiner." He specifically denied saying to Government counsel that the spots on the writing were "to determine the age of the writing," and said he was unable to tell whether the test he concluded had been made was to determine the age or the make of ink. He could not go beyond saying that the examiner was "making some determination in regards to the ink."
The specific original document on which the three spots were found by Purtell has never been identified and brought to the attention of this court on appeal. The appendix filed by Hedgeman contains a copy of his motion for new trial to which are attached copies of the exhibits introduced during Pearson's testimony as showing a notation of payment to Hedgeman. There is no indication as to which of the attached copies of exhibits, if any, was the one looked at by Purtell. Each of the exhibits, however, has substantial writing on it in addition to the payment notation. We have no way of being sure that the spots Purtell observed were on the payment notations or elsewhere; but it does appear because there was only one payment notation and the one document examined had three "solvent" spots, two on one side and one on the reverse, that other writing than the Hedgeman payment notation was involved in at least two of the three spots. Finally, we note that when the respective counsel took the deposition of Purtell on September 22, 1976, there was a cursory effort to examine the exhibits but there was no follow through by the defense counsel to locate and identify the specific exhibit or document which Purtell had observed as having the three spots on it.
The Government counsel, according to his affidavit, after learning that it was not possible to ascertain from an examination the age of the questioned writing, and that defense counsel had already been told the same thing, did not consider the remaining conversation with Purtell other than incidental and did not make a mental connection with Pearson's testimony the previous day that he had not had the documents examined. Government counsel, in any event, did not advise defense counsel of Purtell's remarks about a previous examination. The Government did not call Purtell as a witness. The trial was not concluded until the middle of February, and although the exhibits were available to defense counsel, no effort to subject them to examination was made by that counsel. Some two and a half years later, defense counsel happened to meet Purtell at a restaurant and when asked if he knew him responded, "Oh, yes, I know Dave. I asked him a question in regards to the age of ink and he gave me the answer once." Purtell responded, "That's quite interesting because the next day I was retained by the Federal District Attorney's Office to look at a document for the age of ink, and it was the same one you had talked about." For some reason this conversation, which is set forth in full, triggered a follow-up by defense counsel with the ultimate development of what is now claimed to be newly discovered evidence justifying a new trial.
The essence of the claim is that without Pearson's testimony there would have been no motivation for Hedgeman to have done the things he did, or failed to do; that he was handling the paper work in the manner he had been told to by government officials; that he was acting in good faith (the jury had been instructed that good faith was a complete defense); that while Pearson's testimony was primarily directed to the conspiracy count, as to which there was a mistrial, the fact that the jury may have believed nevertheless that Hedgeman had accepted payoffs would cause the jury to discredit his testimony supporting his good faith defense; and that when the jury became aware of the fact that Pearson had committed perjury in saying that he had not had the document examined the members would conclude that he had lied about Hedgeman's accepting kickbacks and had fabricated the Hedgeman payment notations which would thereby eliminate any motivation for his falsifying the various documents and would ultimately make his claim of good faith credible.
The district court, on the basis of the deposition and documentary evidence submitted to it, after noting that the Government had admitted its knowledge of the defendant's newly discovered evidence, and assuming that this evidence would impeach (if not perjure) Pearson, and further assuming that the evidence was deliberately withheld, stated that it would have to set aside the conviction "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury," citing United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). Noting that the newly discovered evidence related primarily to the conspiracy charge as to which the defendant had not been convicted, the district court found that there was no reasonable likelihood that the testimony of Pearson, if false, could have affected the judgment of the jury.
Putting aside for the moment the correctness of the district court making the assumptions it did, we, indulging in the same assumptions, nevertheless believe that the district court was correct in its finding. See United States v. Johnson, 327 U.S. 106, 90 L. Ed. 562, 66 S. Ct. 464 (1946). Pearson was substantially impeached. The mistrial on the conspiracy charge to which his testimony was principally directed demonstrates the effectiveness of the impeachment. The additional testimony that solvent had been dropped on three lines of one exhibit while it was in the possession of Pearson, even if it led inexorably to the conclusion that he had the item examined by an expert in the subject to determine whether the age of the ink could be stated, although we have some considerable doubt as to the inexorability of the conclusion, could only have added to the impeachment evidence which the jury did hear, and which, based upon its failure to reach a verdict on the conspiracy verdict, the jury apparently found to be impeaching of Pearson's credibility. Of greater significance, however, is the fact that even if the jury had been convinced that Pearson had perjured himself when he testified that he had not had the document examined, we are unable to believe that the jury could have failed to convict upon the substantive counts in view of the very substantial proof of the specific charges contained in those counts on which Hedgeman was convicted. The defendant argues that without the jury believing that he was taking kickbacks, his testimony would have had greater credibility. This approach pays scant homage to the common sense of the average jury to say that the members would think that a person was acting in good faith when he certified completion of work that had not been performed, passed on bids in the names of persons who were not contractors, and ...